NEW ZEALAND POLICE v DELIU [2022] NZCA 328

NEW ZEALAND POLICE v DELIU [2022] NZCA 328 [22 July 2022]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS OR IDENTIFYING PARTICULARS OF MS S REMAINS INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA610/2020[2022] NZCA 328BETWEEN NEW ZEALAND POLICEAppellantAND FRANCISC CATALIN DELIURespondentHearing: 19 October 2021Court: Brown, Gilbert and Courtney JJCounsel: D J Perkins and A P Lawson for AppellantRespondent in PersonJudgment: 22 July 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The award of damages and the direction that the appellant must providea written apology to the respondent are set aside.C There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] In 2016 the police executed a search warrant at a lawyer's office located on thesame floor of a building as Mr Deliu's chambers. While the search was in progress,Mr Deliu arrived and questioned the police about their activities. This culminated inthe police first warning Mr Deliu and then directing him to refrain from obstructingthe search. Duffy J upheld Mr Deliu's claim that he had been arbitrarily detained bythe police in contravention of s 22 of the New Zealand Bill of Rights Act 1990(NZBORA).1 A declaratory order was made in the following terms:2The detention of Dr Frank C. Deliu at Level 7, 175 Queen Street, AucklandCBD, New Zealand on 31 August 2016 for a period of: 20–35 minutes wasarbitrary and a breach of his human rights under s 22 of the NZBORA.The police do not challenge that finding.[2] The Judge awarded Mr Deliu $3,000 in public law compensation, finding thatin the course of detaining Mr Deliu the police acted in a high-handed and overbearingmanner.3 The Judge ruled that there was no legal basis for reducing an entitlement tocompensation based on the concept of contributory conduct.4 In addition, the Judgedirected the police to provide Mr Deliu with a written letter of apology acknowledgingthe breach of s 22.5 The police appeal only from those aspects of the judgment.The relevant facts[3] In 2016 the New Zealand Police was investigating a complaint that real estatehad been fraudulently sold without the consent of one of the owners. Legal documentstransferring the complainant's ownership in the properties were purportedly executedby him in New Zealand at a time when he was abroad. Those legal documents werewitnessed and certified as correct by a lawyer, Ms S, who was employed by a law firmknown as Amicus Law.[4] On various occasions the police sought to interview Ms S. However Ms Sengaged Mr Deliu to act on her behalf. He advised the police that Ms S was exercisingher right to silence and requested them to direct all communications relevant to theinvestigation to him. The police obtained a search warrant under the Search and1 Claims for false imprisonment and misfeasance in public office were dismissed.2 Deliu v New Zealand Police [2020] NZHC 2506 at [297].3 At [284] and [291].4 At [277].5 At [293].Surveillance Act 2012 (SSA) to search the workplace of Ms S,6 for the purpose ofseizing specified conveyancing documents and associated material relevant to thetransfers of the subject properties. A warrant for that purpose was granted bythe District Court and a number of police officers under the command ofDetective Senior Sergeant Iain Chapman went to Amicus Law to execute the warranton 31 August 2016.[5] Mr Deliu gave evidence that as the office space at level 7, 175 Queen Street,owned by City Q 17507 Ltd, was too large for his chambers alone, Amicus Law tooka tenancy for some of the space. As the Judge explained:[4] Amicus Law was located on level 7 at 175 Queen Street in theAuckland Central Business District (level 7). The principal of this law firmwas Richard Zhao. The owner of level 7 was a registered company, City Q17507 Limited, of which Mr Deliu was one of two directors and his barrister'schambers, known as Justitia Law, were also located on level 7.[5] On the day of the Police search Mr Deliu and Mr Zhao arrived atlevel 7 when the search was in progress. By then staff at Amicus Law hadalready telephoned them to inform them of what was happening. Ms S wasnot at work that day. Mr Deliu had tried to contact her, but was unsuccessful.When he approached the Police officers he considered he had no instructionsto represent Ms S in relation to the execution of the search warrant.For various reasons he was concerned about the Police presence and the searchthat was taking place.(Footnotes omitted).[6] The events which followed were captured on video recordings made by bothMr Deliu and by a police officer present at the search. These were admitted intoevidence by consent. A transcript of the exchange preceding and immediatelyfollowing the detention is annexed to this judgment.7[7] In short Mr Deliu declined to talk with the police officers and insisted onviewing the material already seized. A somewhat testy exchange followed whichculminated in Mr Deliu first being warned for obstruction and then being advised thathe was "detained pursuant to the search warrant". The warrant authorised the police:6 The warrant was issued in relation to "a place situated at Level 7, 175 Queen Street, AucklandCentral, Auckland 1010".7 Also in evidence was a video recording made subsequently by Mr Deliu following his discoverythat the warrant was unlawful: see [8] below.4.5 to detain any person at the place, for the purposes of determiningwhether there is any connection between that person and the object ofthe search, if that person:4.5.1 is at the place at the commencement of the search; or4.5.2 arrives at the place while the search is being carried out.[8] Having retired to his office and undertaken research, Mr Deliu discovered thatthe warrant was unlawful on account of non-compliance with s 143 of the SSA.That section states:143 Search warrants that extend to lawyers' premises or material heldby lawyers(1) This section applies to the execution of a search warrant thatauthorises the search of materials held by a lawyer relating to a client.(2) If this section applies, the search warrant may not be executedunless—(a) the lawyer is present; or(b) a representative of the lawyer is present.(3) If the person who is to execute the search warrant is unable to contactthe lawyer or his or her representative, that person must insteadcontact the New Zealand Law Society and request that a person beappointed by the Society to represent the interests of the clients of thelawyer in relation to the search.(4) Before executing the search warrant, the person who is to execute itmust give the lawyer or his or her representative, or any personappointed by the New Zealand Law Society under subsection (3),—(a) the opportunity to claim privilege on behalf of the lawyer'sclient; or(b) the opportunity to make an interim claim of privilege ifinstructions have not been obtained from the client.[9] After alerting the police officers to this fact, Mr Deliu left the premises andmade an urgent oral application to the High Court for an injunction restraining thesearch.88 This culminated in an agreement to preserve the position in the interim recorded in aminute of Edwards J dated 1 September 2016, whereby the seized material was to be filed in theHigh Court and held pending further order of the Court.The High Court judgment[10] Mr Deliu commenced proceedings claiming arbitrary detention whichbreached s 22 of NZBORA, false imprisonment and misfeasance in public office.He contended that the events on the morning of 31 August 2016 constituted anarbitrary detention in breach of s 22.[11] The Judge first addressed the issue of whether the search was unlawful forfailure to comply with the requirements of s 143 of the SSA. As the Judge explained:[113] For arbitrary detention the immediate focus includes whether thedetention itself was lawful. However, detention in the course of a lawfullyexecuted search may be viewed differently from detention in the course of anunlawful search. The latter precludes any detention being lawful whereas theformer does not. Also, the latter can be an aggravating factor in an arbitrarydetention. The same applies for false imprisonment. With misfeasance inpublic office one of the elements of this tort is unlawful conduct by a publicofficer. Accordingly, I consider it appropriate to examine the question of thelawfulness of the search as a general topic, albeit one that is relevant in variousways to the separate causes of action.[12] Having ruled that the police failed to comply with s 143, thereby rendering thesearch unlawful,9 the Judge proceeded to consider the issue of the police's authorityto detain persons in a search area. The Judge noted that the SSA provides specificpowers to control the movements of persons in search areas in the form of s 116, whichauthorises the exclusion of persons from the search area, and s 118 which authorisesthe detention of persons.10 Section 116 was not relied on by the police,who acknowledged that the power to detain under the warrant was not triggered by thecircumstances that prevailed at the time. The Judge ruled that there was no lawfulbasis for Detective Senior Sergeant Chapman to order the detention of Mr Deliu.11[13] On the question whether there was in fact detention of Mr Deliu, the policecontended that there was nothing more than the verbal statement that he was detained.They also relied on the following:9 Deliu v New Zealand Police, above n 2, at [177].10 At [189].11 At [190].(a) Mr Deliu was never physically restrained by the police;(b) after he was told he was detained he briefly left the conference room tofilm from where the documents already seized had been taken and thenreturned to the conference room until he finally left it; and(c) no attempt was made to stop Mr Deliu from taking this action, nor didpolice later follow him to his office or enter it.12[14] However, the Judge concluded:[199] Looked at overall, I find the evidence that Mr Deliu believed he wasbeing detained by Police order to be convincing and sufficient to satisfy me tothe civil standard of proof that he genuinely believed that was the effect of thedetention order, and that adverse consequences for him would follow shouldhe ignore the order. I am also satisfied that the order had a restraining effecton Mr Deliu's liberty because it caused him to cease behaving in the fashionhe had chosen to behave towards Police on his premises, and its effect was tocause him to withdraw to his office.The Judge was satisfied there was detention in fact because Mr Deliu was no longerfree to act as he wanted to act on those premises.13 With reference to the duration ofthe detention, the Judge concluded:[214] The period between Mr Deliu receiving the direction he was detainedin the conference room and his encounter with Detective Sergeant Cornerseems to me to have been a period of between no more than 30 to 35 minutesand no less than 20 minutes. This is the period in which he was subject towhat I have already found to be an unlawful detention.[15] The Judge then turned to the question of whether the detention was arbitrary.The Judge noted that, while typically an unlawful detention will be an arbitrarydetention for the purposes of s 22, the case law acknowledges that there may be caseswhere an unlawful arrest or detention and an arbitrary arrest or detention are notviewed as one and the same.14 However she observed that the police had not raised adefence based on justification of unlawful detention that would bring the detentionhere within the exception recognised as a possibility in R v Goodwin (No 2).1512 At [191].13 At [201].14 At [217].15 R v Goodwin (No 2) [1993] 2 NZLR 390 (CA).She further noted that if the police had wished to rely on the exceptional circumstancesground then that ground should have been expressly pleaded.16[16] The Judge then addressed the issue of whether the nature of the constraintidentified was sufficient to amount to a detention under s 22, concluding:[231] The detention which in fact occurred was the result of an unlawfuldetention order made in the context of an unlawful Police search of lawyers'premises. The illegality of the search potentially put at risk the protection oflegally privileged "things". In sum, a lawyer (Mr Deliu) who occupied partof the general area where the search was happening attempted to query thesearch and seizure and was stopped from doing so for a period of between20 minutes and 30–35 minutes by the making of the unlawful detention order.For that period of time his liberty to move at large on the floor where his legalpremises were situated was constrained. Although no Police officer interferedwith him after he was given the detention order, this was in circumstanceswhere his conduct was compliant and therefore unlikely to trigger furtherinterference by Police. Had Mr Deliu acted in a way the Police wantedconstrained I have no doubt he would have been arrested. Insofar as DetectiveSenior Sergeant Chapman gave evidence to suggest the contrary I do notbelieve his evidence. It is not consistent with the findings I have reached.I am satisfied that what happened to Mr Deliu constituted an arbitrarydetention under s 22 of the NZBORA.[17] The Judge proceeded to consider and dismiss the claims for false imprisonmentand misfeasance in public office before finally turning to address the issue of relief forthe arbitrary detention. The Judge approached the question of fixing compensation byconsidering the contextual circumstances, explaining that an arbitrary detention in thecontext of an unlawful search, with the threat of possible arrest if the conduct thatattracted the detention order continued, leads to a more serious breach of s 22 thanwould be the case of an arbitrary detention in the context of a lawful search. This wasbecause of the more intrusive nature of the unlawful use of authority by officers of thestate.17[18] The Judge ruled that an appropriate sum to compensate Mr Deliu was $3,000,comprised of $2,000 as compensation for the distress and harm he suffered with anadditional $1,000 to reflect his and the public's interest in the protection, promotionand vindication of the rights affirmed by s 22.18 The Judge considered that16 Deliu v New Zealand Police, above n 2, at [218].17 At [286].18 At [292].Detective Senior Sergeant Chapman acted in a high-handed and overbearing mannerto the point where Mr Deliu's will to resist was overborne to such a degree that he wasprepared to retreat from the search area of the legal premises to his own office incompliance with the detention order.19[19] The reasons for the Judge's grant of further relief in the form of an apology areaddressed in the course of our discussion of that ground of appeal below.Scope and nature of the appeal[20] Although the notice of appeal originally filed included a challenge tothe Judge's findings in relation to s 143(2) of the SSA, shortly prior to the hearingthe appeal was confined to the grant of remedies of public law compensation and thedirection that an apology be provided to Mr Deliu. The finding that Mr Deliu had beendetained was not in issue.[21] For his part Mr Deliu filed a memorandum under r 33 of the Court of Appeal(Civil) Rules 2005 supporting the judgment on other grounds, namely:a. The Appellant failed to discharge its onus of proof that my detention waslawful, Wright v Attorney-General [2019] NZHC 59 at [17] and thecommon law's great ancient writ of habeas corpus;b. There was no or insufficient justification for any detention;c. Even if the initial detention was lawful, it later became unlawful.[22] Subsequently the parties agreed that the appeal in respect of the award ofdamages raises three issues:1. Did the High Court err in finding that the [police's] conduct was"high-handed, overbearing and unreasonable", such that an uplift in theaward of public law compensation was warranted?2. Can a plaintiff's conduct be taken into account when assessing remediesfor a breach of the New Zealand Bill of Rights Act 1990?3. If the answer to [1] and/or [2] is "yes", did the High Court err in awarding[Mr Deliu] $3,000 in public law compensation?19 At [291].With reference to the order to provide a letter of apology the issue is whether that isan available remedy for a breach of NZBORA?[23] The approach of this Court on an appeal by way of rehearing was explained bythe Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar:20[16] Those exercising general rights of appeal are entitled to judgment inaccordance with the opinion of the appellate court, even where that opinion isan assessment of fact and degree and entails a value judgment. If the appellatecourt's opinion is different from the conclusion of the tribunal appealed from,then the decision under appeal is wrong in the only sense that matters, even ifit was a conclusion on which minds might reasonably differ. In suchcircumstances it is an error for the High Court to defer to the lower Court'sassessment of the acceptability and weight to be accorded to the evidence,rather than forming its own opinion.(Footnote omitted.)[24] The Court stated that in reaching a conclusion on whether the decision iswrong, no deference is required beyond the customary caution appropriate whenseeing the witnesses provides an advantage because credibility is important.21However, in this appeal the course of events was captured on video recordings whichwere in evidence and hence we are in an essentially equivalent position as the Judgein reaching conclusions about those events.Public law damages[25] The task of a court faced with a breach of NZBORA is to award an effectiveremedy which is both appropriate and proportionate to the circumstances. While insome cases a declaration may be sufficient to vindicate a breach, in others an award ofmoney may also be necessary if, without it, a declaration would fall short of anappropriate effective and proportionate remedy. The question will often be whether,for the purposes of vindication or compensation, a money sum should accompany thedeclaration in order to make the remedy effective.2220 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.21 At [13].22 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [300] per Tipping J.[26] As Blanchard J explained in Taunoa v Attorney-General:23[255] In undertaking its task the court is not looking to punish the State orits officials. For some breaches, however, unless there is a monetary awardthere will be insufficient vindication and the victim will rightly be left with afeeling of injustice. In such cases the court may exercise its discretion to directpayment of a sum of monetary compensation which will further mark thebreach and provide a degree of solace to the victim which would not beachieved by a declaration or other remedy alone. This is not done because adeclaration is toothless; it can be expected to be salutary, effectively requiringcompliance for the future and standing as a warning of the potentially moredire consequences of non-compliance. But, by itself or even with otherremedies, a declaration may not adequately recognise and address the affrontto the victim. Although it can be accepted that in New Zealand anygovernment agency will immediately take steps to mend its ways incompliance with the terms of a court declaration, it is the making of amonetary award against the State and in favour of the victim which is morelikely to ensure that it is brought home to officials that the conduct in questionhas been condemned by the court on behalf of society.[256] It may be entirely unnecessary or inappropriate to award damages ifthe breach is relatively quite minor or the right is of a kind which isappropriately vindicated by non-monetary means, such as through theexclusion of improperly obtained evidence at a criminal trial. It may also beunnecessary if a damages award under another cause of action has adequatelycompensated the victim, especially so where that award has a component ofaggravated damages. In such a case there is nothing to be gained by way ofvindication by adding a nominal sum for the Bill of Rights breach.[257] In other cases, however, non-Bill of Rights damages may not beavailable since the only actionable wrong done to the plaintiff is the Bill ofRights breach. Then a restrained award of damages may be required if withoutthem other Bill of Rights remedies will not provide an effective remedy.[258] When, therefore, a court concludes that the plaintiff's right asguaranteed by the Bill of Rights Act has been infringed and turns to thequestion of remedy, it must begin by considering the non-monetary reliefwhich should be given, and having done so it should ask whether that isenough to redress the breach and the consequent injury to the rights of theplaintiff in the particular circumstances, taking into account any non-Bill ofRights damages which are concurrently being awarded to the plaintiff. It isonly if the court concludes that just satisfaction is not thereby being achievedthat it should consider an award of Bill of Rights Act damages. When it doesaddress them, it should not proceed on the basis of any equivalence with thequantum of awards in tort. In this respect I would adopt the approachin Greenfield and Fose. The sum chosen must, however, be enough to providean incentive to the defendant and other State agencies not to repeat theinfringing conduct and also to ensure that the plaintiff does not reasonably feelthat the award is trivialising of the breach.23 Taunoa v Attorney-General, above n 22.[27] The relief sought by Mr Deliu in respect of the NZBORA cause of actionincluded, in addition to declaratory relief and a direction that the police publiclyapologise to him, an award of damages as follows:An order that the defendant pay the plaintiff not less than $15,000 in generaldamages for humiliation, embarrassment, loss of dignity, loss of self-esteem,loss of pride, distress, anxiety injury to reputation and/or trouble andinconvenience and/or not less than $5,000 in public law damages;[28] In addressing the issue of relief the Judge proceeded to consider the variousforms of relief sought by Mr Deliu, commencing as follows:[273] Mr Deliu is entitled to relief for the arbitrary detention that I havefound he suffered. First, he is entitled to a declaration that his rights unders 22 of the NZBORA were breached.[274] Mr Deliu also seeks monetary compensation for the breach of s 22.It is well settled since Baigent's Case that grants of monetary compensationfor breaches of NZBORA rights are available. Such grants are for the purposeof giving effect to or vindicating the rights protected by the NZBORA.In principle there must be no overlap with damages awards for torts that areestablished from the impugned conduct, but here that principle is not engaged.(Footnotes omitted.)[29] The issue is not simply one of availability. As the appellant observes, in somecases a declaration will be sufficient to vindicate the right which has been breached.It submits that this is such a case. However the Judge did not discuss Taunoa orsubsequent decisions of this Court such as Attorney-General v Van Essen24 andDotcom v Attorney-General.25 In the former, after reference to Taunoa this Courtstated:26[82] Accordingly the question of remedy first requires consideration of thenon-monetary relief that can be or has been given. The Court will assesswhether that is enough to redress the breach and any relevant injury. Only ifthe breach in question requires something more to vindicate it will an awardof damages be considered necessary. (Footnote omitted.)[30] Although at the commencement of her discussion of an apology, the Judgeremarked that the declaration and the sum of compensation awarded were a proper24 Attorney-General v Van Essen [2015] NZCA 22, (2015) 10 HRNZ 155.25 Dotcom v Attorney-General [2018] NZCA 220, [2018] NZAR 1298.26 Attorney-General v Van Essen, above n 24.reflection of the redress to which Mr Deliu was entitled,27 it is not apparent to us thatthe Judge focused directly on the question whether, in light of the grant of adeclaration, it was necessary to also make an award of public law damages.Consequently we proceed to address that question. We do so by considering thecircumstances giving rise to the detention, Mr Deliu's reaction at the time, and thenature and duration of the detention.The circumstances leading to the detention[31] The Judge commenced her analysis of the interaction between Mr Deliu andthe police officers in this way:[276] In the present case the Police complaint about Mr Deliu when he"intruded" on the search was that he was aggressive and rude. That was as faras Detective Senior Sergeant Chapman could go to explain why he reacted ashe did. However, I do not find the words Mr Deliu expressed to be rude.This can be seen from reading the transcript of the exchanges betweenMr Deliu and Police officers that day. He made it clear he did not want toengage with Detective Senior Sergeant Chapman, but this was incircumstances where rather than speak directly to Mr Deliu about the searchand what had been seized already Detective Senior Sergeant Chapmanproceeded to give Mr Deliu the NZBORA rights that Police give to suspectpersons and he failed to address directly the questions that Mr Deliu posed tohim. Those factors exacerbated the situation facing Mr Deliu. Neither partyacted politely towards the other.[32] Perceptions may vary as to the divide between impoliteness and rudeness.However Mr Deliu was unquestionably aggressive in his approach. That was reflectedin his comments while moving towards the box of material already located in thesearch:I'm not pushing, you're in my way.Okay then move or just get out of the way.It was also evident later when he upbraided an officer who unwisely smiled.27 Deliu v New Zealand Police, above n 2, at [293].[33] The Judge appears to suggest that DSS Chapman had not attempted to speakdirectly to Mr Deliu about the search. However he had tried a number of times, butwas rebuffed by Mr Deliu in these terms: I don't need to hear from you.I don't care, you've told me your name, I don't need to hear from you Can you not talk, you're on my floor, I'm not asking you to talk.[34] In weighing such behaviour the Judge observed that Mr Deliu was angry andupset. She said his demeanour was not surprising given that he was faced with anunlawful search of the premises from which he practised.28 Of course, Mr Deliu wasnot aware at the outset that the search was unlawful. Nor was DSS Chapman.[35] In cross-examination DSS Chapman explained the effect which Mr Deliu'sconduct had on the situation: my first approach to you, first conversation with you was, can we just havea chat about this, can we just discuss what's going on. That was very quicklyoverridden by you, you weren't, in my view, willing to hear anything I had tosay. And it would have become very clear, had you come into the office, satdown and you and I had a conversation, that none of this would have occurred.From my perspective, everything that occurred, with respect to the detention,to the warning for obstruction, was a direct result of your action as you cameinto that office, and the manner at which you approached that circumstance.[36] The Judge was clearly sympathetic to Mr Deliu's situation. In the course ofaddressing the issue whether the level of compensation should be reduced on accountof Mr Deliu's conduct, and while stating that she could imagine other possibly betterways of approaching police when faced with the situation that confronted Mr Deliu,29the Judge said:[282] Finally, there is the fact that Mr Deliu would have had little time tothink about what was happening that day and how best to approach matters.The first he would have known was when he was telephoned and told thePolice were at level 7. When he walked into the premises the Police were inthe conference room and the search had already begun. Thus, Mr Deliu had28 At [278].29 At [283].to respond to a problem that he had only recently learned about. He did nothave time to reflect on how best to approach the Police. Indeed, until heentered the conference room he may have had no idea about how they wouldrespond to him.[37] By contrast is the Judge's assessment of the position of the police:30The Police had placed themselves in a difficult position when they arrivedunannounced only to find Ms S was not present. Their difficulties wereexacerbated when Mr Deliu arrived and questioned what they had been doing.However, these were difficulties of their own making.Mr Deliu's reaction[38] The Judge stated that Mr Deliu remained in the conference room for a fewminutes, then left and went to his office.31 The Judge considered that Mr Deliu's willto resist was overborne to such a degree that he was prepared to retreat from the searcharea of the legal premises to his own office in compliance with the detention order.32However it does not appear to us from our viewing of the videos (an impression whichis not fully conveyed by the transcript alone) that Mr Deliu was so affected.[39] His initial reaction on being advised that he was detained was: "we're gonnaget to that later". He went on to ask about the contents of the first envelope in the boxof seized material on the desk in the conference room. On being informed that it wasa partial file in relation to a property transaction he then asked questions seeking toidentify the office from which the file had been taken. He walked out of the conferenceroom towards the identified office and then returned. This episode is recorded in thetranscript in his statement:Okay the office on the left — just to be clear here I'm just going to record this.Are you talking about the first door there on the left, is that correct? This doorright here.[40] Having identified the door and returned to the conference room he addressedthe officer who, like Mr Deliu, was recording events on his cellphone, stating:You don't have my permission to do that by the way.30 At [287].31 At [204].32 At [291].[41] Mr Deliu repeated the process with two further documents. He then asked theofficers: are you done with your search?When it was explained that pursuant to the warrant the officers wished to see the fullfiles in relation to the sale and purchase transaction, Mr Deliu then endeavoured tohave the search deferred. The police responded that they would be continuing withthe search "ideally with [Mr Deliu's] co-operation." Mr Deliu replied that he wouldneed to consider that. When asked what period would be involved, he said:I don't know, as long as it takes.[42] The exchange which immediately preceded Mr Deliu's "retreat" from theconference room was as follows:A. So the question is, do we wish to co-operate, correct?Q. Yes.A. Okay, we'll come back to you with that.Q. How long?A. Carry on with your search.Q. How long?A. As long as it takes, I told you that.Q. Okay, we'll carry on with the search.A. Okay.The nature and duration of the detention[43] The Judge explained the purpose and effect of the detention in this way:33[205] The purpose of the detention order was to give Police an element ofcontrol over Mr Deliu both inside and outside the conference room, which canbe seen from Detective Senior Sergeant Chapman's evidence regarding thedual purpose of the order. Detective Senior Sergeant Chapman also referredto how Mr Deliu was free to leave the conference room and to go to his office,which in his view meant any detention was for a few seconds only and nomore than a "technical detention". However, I regard this to be an ex post33 Deliu v New Zealand Police, above n 2.facto explanation of no more than what actually happened after the making ofthe detention order. I do not believe the explanation. It is inconsistent withthe overall impression I have gained from the direct and circumstantialevidence relevant to the search. Also, I do not understand this degree ofmovement to be inconsistent with the purported legal restraint imposed bythe detention order. There is a difference between a legal occupant oflevel 7 physically moving from one part to another part of level 7 while aPolice search is underway and that occupant being at liberty to do whateverhe might otherwise have wanted to do at the time on this private property.Mr Deliu said as much under cross-examination.(Footnote omitted.)[44] The Judge acknowledged that the effect of the detention "did not go so far asto constrain Mr Deliu 100 per cent", noting there were no cases where the degree ofconstraint was analogous to what occurred in this instance.34 The Judge endeavouredto identify the degree of constraint which the order imposed on Mr Deliu, observingthat the detention order put Mr Deliu on notice that he was not to intrude into thesearch. The Judge was in no doubt that had he continued to do so "consequenceswould have followed".35[45] The Judge was satisfied that the detention order remained in effect afterMr Deliu left the conference room.36 The Judge further explained:37For [the period of detention] his liberty to move at large on the floor where hislegal premises were situated was constrained. Although no Police officerinterfered with him after he was given the detention order, this was incircumstances where his conduct was compliant and therefore unlikely totrigger further interference by Police.[46] The detention ceased at some point "after 11.30 am and before 11.45 am".38Hence the reference in the declaration to the period of detention being for "20–35 minutes".Our assessment[47] The Judge plainly considered that the police were the authors of their ownmisfortune and that Mr Deliu had been very poorly treated. That perception is34 At [224].35 At [226].36 At [210].37 At [231].38 At [213].encapsulated in the finding that the police conduct towards Mr Deliu was"high-handed, overbearing and unreasonable".39 Mr Deliu appears to have beenabsolved of any responsibility. We infer that is because the search had been held to beunlawful notwithstanding that Mr Deliu was not aware of that in the course of theepisode leading up to the detention.[48] Given that Mr Deliu would not engage with the police officers, it is notapparent to us what the Judge expected that the police should have done whenconfronted with Mr Deliu's robust conduct. If they were not to take steps to excludehim from the search area, the only other possibility would appear to be to abandon thesearch and withdraw.[49] In our view, Mr Deliu was endeavouring to obstruct the search and wasdesirous of bringing it to an end. We consider the obstruction warning was justified.Quite apart from the fact that it was not within the authority of the warrant, the furtherstep of purported detention was clumsy and possibly also hasty. However, as thevideos clearly show, the atmosphere following Mr Deliu's arrival was tense. Mr Deliuwas very assertive and sought to dominate the exchange with the police officers.Given their limited range of options we do not share the Judge's view that the reactionof the police to Mr Deliu's behaviour was high-handed or over-bearing. It was agauche attempt to ensure the search would continue without further interference byMr Deliu. The detention, such as it was, was in the nature of an exclusion from aspace, not a physical confinement.[50] In Van Essen this Court carried out a survey of awards of public law damages.40The Court observed:[106] We briefly comment on the practice of awarding public lawdamages in New Zealand courts. First, in most cases in which damages areeventually awarded, the conduct concerned has involved physical restraint,direct infliction of physical harm, or a prolonged or significant deprivation ofliberty. These cases span in seriousness from physical detention, handcuffing,to inappropriate solitary confinement and physical violence in prison similarsituations. The seriousness of the circumstances is reflected in the quantumawarded to acknowledge the gravity of the breach in each case.39 At [284] and see also [291].40 Attorney-General v Van Essen, above n 24, in Appendix 1 to the judgment.[107] Conversely there are very few cases in which public law damageshave been awarded where no physical damage or interference with liberty hasoccurred. Where damages have been awarded in such cases, this has typicallybeen to reflect equivalence with tortious claims, or on the basis of clearpecuniary loss arising directly from the breach of the right itself. The largestawards to date have been justified with dual reference to tortious or commonlaw compensatory principles. These were predominantly prior to Taunoa.[108] The Taunoa decision itself featured a comprehensive review ofinternational human rights jurisprudence on the issue of remedies. In addition,and in the period since Taunoa, there have been recent cases in theUnited Kingdom offering damages for breach of human rights, extending tocompensation for the frustration and anxiety experienced by the individualsuffering such a breach. Again, however, those damages awards were justifiedexpressly with reference to the gravity of the breach of the right involved,namely the "precarious nature of the deprivation of liberty" in the case ofprisoners serving a mandatory sentence.(Footnotes omitted.)[51] The present case does not involve those factors of physical restraint, directinfliction of physical harm or prolonged or significant deprivation of liberty.The consequence of the detention order was that for a comparatively brief period oftime Mr Deliu's liberty to move at large on the floor where his legal office was situatedwas constrained.41 The Judge acknowledged that there were no cases where the degreeof constraint was analogous to the present case.42[52] A finding of arbitrary detention will frequently be accompanied by a findingof false imprisonment. However Mr Deliu was found not to have been falselyimprisoned. The appellant submits that this results in identification of the appropriateremedy being more difficult. It submitted that the Judge appeared to have counteredthis difficulty by treating the calculation of public law compensation and damages intort as equivalent. The appellant contended this was demonstrated by the Judge'sadoption of this Court's obiter comment in Dunlea v Attorney-General43 that there arestrong reasons for adopting the same approach in calculating both remedies.44[53] However as noted above this position was rejected in Taunoa.45 McGrath Jobserved:41 Deliu v New Zealand Police, above n 2, at [231].42 At [224].43 Dunlea v Attorney-General [2000] 3 NZLR 136 (CA) at [37]–[38].44 Deliu v New Zealand Police, above n 2, at [285].45 Taunoa v Attorney-General, above n 22.[368] The court's finding of a breach of rights and a declaration to that effectwill often not only be appropriate relief but may also in itself be a sufficientremedy in the circumstances to vindicate a plaintiff's right. That will often bethe case where no damage has been suffered that would give rise to a claimunder private causes of action and, in the circumstances, if there is no need todeter persons in the position of the public officials from behaving in a similarway in the future. [54] The Judge's focus on Dunlea46 may have been a factor in her division of thedamages award into $2,000 to compensate for distress and harm suffered by Mr Deliu,and $1,000 to reflect his and the public's interest in the protection, promotion andvindication of the rights affirmed in s 22. However, in our view the allocation of thelarger sum to compensate Mr Deliu does not accord with Blanchard J's statement inTaunoa:47[259] In public law, making amends to a victim is generally a secondaryor subsidiary function. It is usually less important than bringing the infringingconduct to an end and ensuring future compliance with the law bygovernmental agencies and officials, which is the primary function of publiclaw. Thus the award of public law damages is normally more to mark society'sdisapproval of official conduct than it is to compensate for hurt to personalfeelings.(Footnote omitted.)[55] We recognise that, as Blanchard J observed, the fixing of NZBORA damagesis far from an exact science and there is no scale of damages to which a Judge canresort.48 However our review of the authorities identified a number of cases which ona comparative basis would indicate that the award to Mr Deliu was excessive.[56] In Attorney-General v Udompun this Court found there had been a breach ofs 23(5) of NZBORA, which protects the right of those deprived of liberty to be treatedwith humanity and with respect for their inherent dignity. Mrs Udompun arrived atAuckland Airport from Thailand and was refused entry into New Zealand. As the nextavailable flight was in two days, she was held in the Papakura Police Station pendingdeparture. The majority held that the breach of s 23(5) arose due to a combination ofthe police not allowing her to change her clothes before leaving the airport,46 The other case to which the Judge referred was also a false imprisonment case, at [289]:Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335.47 Taunoa v Attorney-General, above n 22.48 At [260].inadvertently not providing sanitary products upon Ms Udompun's request, and notsupplying food for the 12 hours she was held at the airport. An award of $4,000damages was made.49 While the Court was of the view that Mrs Udompun should takesome responsibility for her situation, important considerations were that the rightrelated to human dignity and the length of time for which she was without sanitaryproducts (some 23 hours) was not insignificant.50 In our view this was a more seriousbreach than the present case.[57] Taunoa dealt with prisoners held in Auckland Prison's "BehaviourManagement Regime" in breach of their right to be treated with humanity and dignitywhen deprived of their liberty. One of the prisoners, Mr Kidman, received an awardof damages of $4,000. However the duration of the breach in his case was threemonths, whereas a roughly comparable award to Mr Deliu was made in respect of onlyapproximately half an hour spent in the environment of his own office.[58] As required by Austin Nichols we must reach our own conclusion on a matterwhich involves an assessment of fact and degree and entails a value judgment.51We do so mindful of the direction of Blanchard J in Taunoa that a figure must bechosen with which responsible members of New Zealand society will feel comfortabletaking into account all of the circumstances, including the nature of the infringed right,the nature of the breach, the effect on the victim and the other redress which has beenordered.52[59] Weighing those factors, it is our view that the declaration made in this case wassufficient to vindicate the contravention of the right. Additional relief in the form ofmonetary compensation was not required. Consequently the appeal in respect of thedamages award is allowed.49 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [141]–[148] and [189].50 At [175].51 Austin, Nichols & Co Inc v Stichting Lodestar, above n 20, at [16]. See [23] above.52 Taunoa v Attorney-General, above n 22, at [260]. The Judge added that the level will have to beworked out on a right-by-right and breach-by-breach basis, sometimes with the assistance of theappeal process.[60] In these circumstances it is unnecessary for us to answer the second of theparties' agreed issues,53 namely whether a plaintiff's conduct can be taken into accountwhen assessing remedies for breach of NZBORA. However we consider that theappellant's point is well taken that it was not the Judge's intention to rule thatcontributory conduct can never be taken into account in the assessment ofcompensation.54 If it were otherwise, that would contradict the Judge's subsequentobservation:[279] I acknowledge that the circumstances of the breach including theconduct of the plaintiff are relevant to the level of compensation to be awardedinsofar as trying circumstances created by a plaintiff's conduct may inappropriate occasions warrant a lesser sum of compensation, just as moreegregious conduct on the part of the defendant can warrant an increase in thelevel of compensation. Is an order to provide a plaintiff with a written apology an available remedy fora breach of NZBORA?[61] The relief which Mr Deliu sought included:A direction that the defendant publicly apologise to the plaintiff in open Courtand/or in a press release to the media and/or in a publication on the front pageof the New Zealand Police's website for a period of one month;[62] The Judge's discussion of this aspect of the claim was brief. There was noanalysis of case law or academic writing concerning the availability of an apology asa coercive remedy. The Judge said:[293] Mr Deliu also sought an apology from Police. I considerthe declaration made in this judgment, and the sum of compensation awardedare a proper reflection of the redress to which Mr Deliu is entitled.Public apologies are usually associated with the tort of defamation, and noauthority to support a direction for the type of apology sought by Mr Deliu inthe amended statement of claim was drawn to my attention. Nonetheless it isclear to me from Baigent's Case that the range of remedies available to theCourt to redress breaches of NZBORA is wide. I consider Mr Deliu is entitledto an apology but it need be no more than a written apology sent to him.How he then chooses to treat the apology is a matter for him. This dealswith the relief sought for this cause of action.53 See [22] above.54 Deliu v New Zealand Police, above n 2, at [277].The Judge did not specify the terms of the apology but directed that the police were toprovide Mr Deliu with a written letter of apology "acknowledging the breach of s 22(b)of the NZBORA".55[63] The appellant's challenge to this finding was advanced both on the ground thatthe remedial jurisdiction did not extend to mandatory apologies and that, in any event,such relief was not appropriate where the Crown is the defendant.[64] Although the parties' submissions on the first issue were fulsome, we do notconsider that the present case is a suitable context in which to resolve the questionwhether the Court has jurisdiction to order the making of an apology. That is because,even if the jurisdiction exists, it would not apply in the present case where the Crownis the defendant.[65] We agree with the submission of Mr Perkins, on behalf of the appellant, thats 17(1)(a) of the Crown Proceedings Act 1950 is a complete answer to the prayer foran order to make an apology. It provides:(1) In any civil proceedings under this Act by or against the Crown the court shall, subject to the provisions of this Act and any other Act,have power to make all such orders as it has power to make inproceedings between subjects, and otherwise to give such appropriaterelief as the case may require:provided that—(a) where in any proceedings against the Crown any such relief issought as might in proceedings between subjects be granted byway of injunction or specific performance, the court shall notgrant an injunction or make an order for specific performance,but may instead make an order declaratory of the rights of theparties; ...[66] A court-ordered apology would be of its nature a form of mandatory injunctionwhich is a type of relief which has never been obtainable against the Crown and wouldonly be available in the event that Parliament amended the Crown Proceedings Act.5655 At [299].56 Burrows v New Zealand Police [2018] NZHC 2088, [2019] 2 NZLR 652 at [75].The High Court had no jurisdiction to grant the order for an apology which Mr Deliusought. The appeal on this issue is also allowed.Result[67] The appeal is allowed.[68] The award of damages and the direction that the appellant must providea written apology to the respondent are set aside.[69] The appellant proposed that were the appeal to be allowed there should be noorder for costs. Accordingly there is no costs order.Solicitors:Crown Law Office, Wellington for AppellantTranscript of videoA. Hey I'm Frank Deliu, I'm the owner of this floor and counsel acting so I'm going torecord this okay.Q. Nice.A. Thanks.Q. I'm Iain Chapman.A. Good to meet you Iain.Q. Peter (inaudible 10:56:59).A. Hello Peter.Q. Gill Holland.A. Hi Gill, good to meet you. So is that stuff taken from this office?Q. Well shall we have a chat and I'll explain everything to you.A. I understand the basics, can you just answer my question, is that stuff taken from thisoffice or not?Q. These three envelopes so far.A. Okay, can I just record them please, excuse me, I'm not pushing you're in my way.Q. (inaudible 10:57:18).A. Okay then move or just get out of the way, and what's in there, what's in thereplease?Q. Sorry, I spoke to, was it you I spoke to?A. I'm the owner of this floor and I'm his lawyer, what's in the envelopes please.Q. Can you detail (inaudible 10:57:34).A. Thank you.Q. Before we go any further –A. Okay, I'll just ask my questions, I don't need to hear from you.Q. My name is Detective Sergeant –A. I don't care, you've told me your name, I don't need to hear from you, I'm notasking you questions.Q. My name is Detective Senior (inaudible 10:57:43).A. Can you not talk, you're on my floor, I'm not asking you to talk.Q. Frank, I'm warning you for obstruction.A. Obstructing what?Q. A police constable in the execution of his duty.A. And how am I obstructing you, I don't want you to talk to me.Q. My name is Detective Senior Sergeant Iain Chapman of the Auckland Police –A. Okay, so I don't need your speech.Q. I'm executing a search warrant –A. Good thank you –Q. Under section 6 of the Search and Surveillance Act –A. We've got the warrant right here, thank you very much.Q. You have the right to refrain from making a statement –A. We're not making a statement, we're asking you questions of what you've taken,can you please answer the question of what you've taken. Am I a suspect, why areyou even giving me my rights?Q. We have a list of lawyers that you can speak, because we're executing a searchwarrant.A. Am I a suspect, why are you giving me my rights?Q. You were detained pursuant to –A. I'm detained.Q. Pursuant to this search warrant.A. I'm detained?Q. Yes.A. Okay, okay.Q. You've (inaudible 10:58:20) yourself in here, I have spoken to Richard –A. Okay, okay if I'm detained we're gonna get to that later, now what's in the envelopeplease?Q. You have the right to refrain from making a statement.A. Nobody's making a statement, what's in the envelope?Q. You have the right to speak to a lawyer in private and without delay and we have alist of lawyers that you can speak to for free. Do you understand your rights?A. Yes, thank you very much now what's in the envelope?Q. (inaudible 10:59:14). Exhibit 1. There's a partial file in relation to property(inaudible).A. And where were these taken, from what office?Q. The office on the left here.A. Okay the office on the left – just to be clear here I'm just going to record this. Areyou talking about the first door there on the left, is that correct? This door righthere.Q. Yes, the glass door.A. The glass door right here that's visible to us?Q. The one that's just been opened.A. Okay, I just wanted to confirm that, next please. You don't have my permission todo that by the way.Q. Exhibit 2, same place.A. Same place, another sale and purchase document is that right?Q. It's a partial file in relation to the sale (inaudible 10:59:55) property 3 (inaudible10:59:58) [Eden Crescent property].A. Yep, great, thank you.Q. And exhibit 3 (inaudible 11:00:06).A. And same place, is that right?Q. Same place.A. Yeah wonderful. Is that everything?Q. That's everything.A. Okay, and are you done with your search?Q. No.A. You're not done, what's left?Q. We've got the warrant, we'll see – we want the full files in relation to this sale andpurchase (inaudible 11:00:25) property. There's also some documents in relation tothe trust account, and the settlement statements.A. Okay. Well we need time to consider the warrant obviously before we can give youan answer on that.Q. Frank, that's not how it works. We're here with the search warrant, we will beobtaining this, ideally with your co-operation as we discussed on the phone.A. Okay ideally or not.Q. And if not, then we will just search.A. Okay, and that's what I mean, so as to the question of co-operation, we'll have toconsider that.Q. Well how long are you talking about?A. I don't know, as long as it takes.Q. Well that's again –A. Are you laughing, is there something funny here, Sir?Q. Frank –A. Is there something funny here, Sir? Is this a funny situation?Q. Frank –A. Thank you.Q. As I said to you before, we're here executing a search warrant.A. Okay, I thought it was something comical that was happening here. I was confused.Q. Frank. I can't understand you. You have actually hurt my foot, which I am havingtreatment on.A. Okay.Q. You were very rude –A. Is that what's funny? Is that what's funny?Q. Frank – no it's not –A. Thank you, okay, yes, please.Q. We will be searching this office.A. I understand, co-operation is the one we're talking about right now, please let's nottalk about what you're gonna do, you said that you'd like my co-operation, is thatright or wrong?Q. Ideally.A. Ideally.Q. But we don't need it.A. Okay. And nobody's debating that, Sir. So the question is, do we wish to co-operate, correct?Q. Yes.A. Okay, we'll come back to you with that.Q. How long?A. Carry on with your search.Q. How long?A. As long as it takes, I told you that.Q. Okay, we'll carry on with the search.A. Okay.